Yovichevich v The Royal Australian and New Zealand College of Radiologists [2009] NSWSC 381

New South Wales Supreme Court

CITATION : Yovichevich v The Royal Australian and New Zealand College of Radiologists [2009] NSWSC 381

HEARING DATE(S) : 31 March 2009

JUDGMENT DATE : 22 May 2009

JUDGMENT OF : Smart AJ

DECISION : Leave refused to plaintiff to file further amended statement of claim; plaintiff's action dismissed.

CATCHWORDS : Pleading - fourth attempt to draft statement of claim - as to attempt to plead action in negligence, scope and attributes of duty of care not adequately pleaded - leave not given to raise alternate claim for judicial review - lapse of nine years

LEGISLATION CITED : Uniform Civil Procedure Rules

CATEGORY : Principal judgment

Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 CASES CITED : Caltex Oil (1976) 136 CLR 529 Perre v Apand Pty Ltd (1999) 198 CLR 180

PARTIES : Stanko Yovichevich (Plaintiff) The Royal Australian and New Zealand College of Radiologists (Defendant)

FILE NUMBER(S) : SC 20429/04

COUNSEL : M Hadley (Plaintiff) N Dawson (Defendant)

SOLICITORS : Harrington Maguire & O'Brien (Plaintiff) Tress Cox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Smart AJ

Friday 22 May 2009

20429/04 Stanko Yovichevich v The Royal Australian and New Zealand College of Radiologists

JUDGMENT 1 Consequent upon my judgment of 20 August 2008 argument ensued as to the adequacy of the proposed Further Amended Statement of Claim lodged and served about 16 September 2008. The Statement of Claim filed on 2 December 2004 came before Adams J. On 30 November 2005, in a judgment in which the Statement of Claim was given detailed consideration and the authorities reviewed, that Judge held at [33]: "33 It is essential that the plaintiff identify the particular attributes of the alleged duty, the breach of which demonstrates negligence."